Tie declared in Dean's Cup Moot Court competition

February 12, 2008Duke Law News

Feb. 12, 2008 — Both Brian Eyink and Eugenie Montague were declared winners in Duke Law’s 2008 Dean’s Cup Moot Court competition on Feb. 7. The judges for the event — Justice Samuel Alito of the U. S. Supreme Court, Judge Jose Cabranes of the 2nd U.S. Circuit Court of Appeals, and Judge William Pauley of the U.S. District Court for the Southern District of New York — said both students’ arguments and presentations were superbly prepared and of equal, excellent quality.

“I only wish all of the cases I have heard throughout my career by real lawyers in court were as well-argued as this competition,” Justice Alito said. “Most oral arguments these days do not involve the delivery of a pretty speech by the lawyers who are arguing on both sides of the case. Most of the time, the members of the panel have lots of questions, like we did today. The most important thing for an advocate to do is to answer those questions in a way that will satisfy judges who may be on the fence … judges who come to the argument looking for help with real questions.”

In addition to judging the Dean’s Cup, the judges participated in classes, held a question and answer session with students who attended the Dean’s Cup, and met privately with Moot Court board members. During the question and answer session, Alito discussed what he felt were the most valuable skills to develop while in law school.

“The skills that were exhibited in a competition like [moot court] are real skills that are very valuable to lawyers in many different areas of practice,” he said. “The ability to analyze difficult questions thoroughly, the ability to write well and persuasively, the ability to stand up and make and argument — I think those have application in any area. If you come out of law school having developed those skills, I think you’ve had a successful legal education.”

During an informal session with Moot Court board members, the judges discussed topics ranging from advocacy tips to their feelings about narrow rulings and life tenure. Responding to a question about common advocacy errors posed by 3L Sonja Ralston Elder, Alito highlighted the need for clarity and a thorough understanding of one’s case. “Sometimes people come into court and don’t really know what their position is,” he said. “As an advocate, you need to know what you are arguing for and be very clear about it.”

Pauley counseled students to always address their adversaries with respect, while Cabranes stressed the importance of always answering the judges’ questions, even if they take an attorney “off track.” “If a panel takes one in a different direction … go with it,” he said.

Asked by 2L Erin Blondel to address potential conflicts between facts and law at the appellate level, Alito noted that the Supreme Court takes cases to clarify important rules of law, not in an attempt to reach a “right result” based on the facts. “We don’t see our job as being to engage in error correction,” he said. The law should be informed by the facts of that particular case, adding that during oral argument the justices will “test” a potential outcome being put forward by posing hypothetical fact situations to the advocates.

All three enthusiastically supported continuing life tenure for federal judges, responding to a question posed by 2L Matthew Levy. “Life tenure is great!” Alito said to laughter. On a more serious note, both Pauley and Cabranes observed that life tenure insulates judges from political intimidation or influence from “constituents” interested in the outcome of any given case. “As a district judge, you make scores of decisions every day about which people are not happy,” said Cabranes. Thanks to life tenure, “you never have to look over your shoulder.”

The judges presided over what appears to be the first Dean’s Cup competition in recent history to result in a tie. Eyink and Montague argued a case based on United States v. Jenkins, a 9th U.S. Circuit Court of Appeals case in which a woman prosecuted for smuggling drugs across the U.S.-Mexico border testified that she believed she was smuggling illegal immigrants, not drugs. She had, in fact, been apprehended twice before in the act of smuggling illegal immigrants, but on the first occasion it was not clear her Miranda rights had been read, and, the second time, she claimed she did not know there were immigrants in her car. She was not prosecuted in either case. Several hours after the woman testified in the drug-smuggling case, however, the United States filed a new complaint, charging her with two counts of alien-smuggling.

Central to the arguments of both sides was the issue of vindictive prosecution. Jenkins’ attorney had moved to dismiss the alien-smuggling indictments on the grounds of vindictive prosecution, and the trial court judge granted the motion. The United States sought an appeal, arguing that Jenkins’ testimony cured previous evidence deficiency in the alien-smuggling case and that this was not vindictive prosecution.

The panel of judges proved very active, grilling both students with questions and hypothetical scenarios throughout their presentations. Afterward, Judges Cabranes and Pauley commended Eyink and Montague on their handling of those interrogations.

“You were directly responsive to the questions that were put to you,” Judge Pauley said. “Your eye contact during argument was superb. That communicates a lot. It’s not only what you say when you’re speaking, it’s how you are presenting yourself at the podium in the court.”

Judge Cabranes affirmed the praise of his colleagues and added compliments for the students’ knowledge of the case. “That is exactly what enables you to answer a quixotic or bizarre question that comes at you. We were all very much impressed with your command of the record and the ease with which you answered questions,” he said.